FOREST SERVICE
Conviction overturned
The 4th U.S. Circuit Court of Appeals has overturned the conviction of a man who burned 70 acres of the Nantahala National Forest in 2020. The circuit court stated that testimony regarding his knowledge of where he was should not have been excluded by the trial court:
“We conclude that specific knowledge of federal ownership is not required for conviction … Therefore, the Government did not have to prove that Evans knew he was on federal land or intended to burn federal land. But the Government did have to prove that Evans acted willfully, and an honest mistake of fact about whether he was burning brush on his own property would be a viable defense… Evans explained his family’s long ownership of property abutting the Nantahala National Forest and his understanding of the boundary lines based on certain markers on the property.”
New lawsuit
A wrongful death lawsuit filed by relatives of three people killed by flash flooding after the Hermit’s Peak/Calf Canyon fire on the Santa Fe National Forest in 2022 alleges that the Forest Service was negligent in failing to close roads or properly warn people of the risks of flash flooding. The fire began as a planned burn. The Forest Service found in a report released later in 2022 that it underestimated the amount of fuel available to the fire and did not adequately account for dry conditions or the risk to nearby communities.
Court decision in Western Watersheds Project v. McKay (9th Cir.)
On October 26, the court of appeals reversed a lower court ruling, and vacated the Fish and Wildlife Service’s biological opinion supporting the Fremont-Winema National Forest’s approval of expanded cattle grazing. It found the BiOp deficient because it did not account for climate change as a baseline condition or a cumulative effect or take it into account in developing mitigation strategies (which were not certain to occur). The BiOp “altogether failed to engage with information in the record suggesting that climate change would affect water levels and streamflow.” The court upheld the grazing decision’s compliance with NEPA and the forest plan. (The article includes a link to the opinion.)
Court decision in Center for Biological Diversity v. U. S. Forest Service (D. Ariz.)
On Halloween, the district court dismissed NEPA claims against the 2023 Salt River Horse Management Plan on the Tonto National Forest and a 2017 Intergovernmental Agreement with the State of Arizona. The claim against the IGA was moot because the Agreement had expired. The claim against the 2023 Plan was not subject to NEPA because it involved no federal action since the forest supervisor had not approved the Plan. Plaintiffs had asserted that ongoing harm to wildlife is occurring in the affected area because of delay in reducing the horse herd to numbers recommended by a collaborative associated with the IGA.
Maybe some of you, like me, are not very familiar with the wild horse issues on federal lands or the unique federal laws applicable to wild horse management. I found this article in the Sierra Club’s magazine to be helpful. Here’s their summary of those laws; while the article is about the BLM, the Forest Service is subject to the same requirements:
In 1959, Congress passed the Wild Horse Protection Act, which banned the hunting of feral horses from aircraft and motorized vehicles on federal land. More expansive protections followed. Wild horses became federally protected under the Wild Free-Roaming Horses and Burros Act of 1971, which gave the BLM power to manage horses in specific herd-management areas, enmeshing the animal in the BLM’s maxim of multiple use. With the new regulations in place, wild-horse numbers quickly increased, so Congress passed the Federal Land Policy and Management Act of 1976, allowing helicopter roundups. Two years later, the Public Rangelands Improvement Act created the adopt-a-horse auctions and required the BLM to set specific population levels for each herd-management area, which led to additional roundups and long-term holding on private ranches as the approved way we get horses off the range.
BLM
Court decision in Western Watersheds Project v. U. S. Department of the Interior (D. Nevada)
On October 18, the district court denied motions for a temporary restraining order and a preliminary injunction against the South Spring Valley and Hamlin Valley Watersheds Restoration Project, which would include removal of pinyon and juniper trees, direct sagebrush treatment, and prescribed fire to restore the landscape to reference conditions and benefit sage-grouse. The decision for the 384,414-acre area was based on an EA.
The court found plaintiffs did not demonstrate a likelihood of success on their NEPA claims. The complaint argued that the Project is “deferring critical decisions about siting and treatment methods to the future with no additional NEPA review.” The court held that the record “describes the maximum number of acres to be treated; percentage of vegetation to be treated; and divides the watersheds into thirteen treatment units, categorizing each unit into one of four treatment categories based on the vegetative conditions and treatment objectives” (comparing it favorably to the EIS in the 8000-acre Navickas/Ashland case we discussed before here). It considered this approach to be “adaptive management,” which is “permitted by NEPA.” (Notably, the court approved of BLM’s statement that it, “determined that treatment within sagebrush habitats needed to be tailored depending on the potential environmental effect.” That seems to suggest that BLM would not be done with NEPA until it has determined the actual effect.) The court upheld the analysis of effects on wildlife and the cumulative effects of grazing in accordance with NEPA (and noted that plaintiffs, “curiously failed to challenge the failure to prepare an EIS”).
The court did find the likelihood of a legal flaw in determining compliance with the RMP’s requirement to replace lost habitats of special status species at a 2-to-1 ratio, which the BLM conceded it did not do, but upheld compliance with specific RMP requirements related to bat species and sage-grouse. Despite plaintiff’s high likelihood of success on the one claim, the court found limited evidence of “irreparable harm” from allowing chaining to proceed, and refused to stay the Project pending a final decision in the lawsuit. Additional discussion can be found here.
- Alaska BLM ANWR oil and gas lease cancellation
New lawsuits
The Alaska Industrial Development and Export Authority has sued USDI over the September cancellation of seven oil and gas leases in the Arctic National Wildlife Refuge. AIDEA claims the termination violated a statute that directs the Interior Department to award leases covering at least 400,000 acres for exploration. In canceling the leases, Interior Department Sec. Deb Haaland cited “multiple legal deficiencies in the underlying record supporting the leases.” On October 31, Americans for Prosperity filed a lawsuit regarding its FOIA request related to the same decision.
Settlement of Albany County Conservancy v. Novotny (D. Wyo.)
Three months after the BLM was sued by a local environmental group and retired Fish and Wildlife Service biologist for violating NEPA and its public participation requirements when it approved a transmission line for wind energy, the agency has decided to revisit the decision. Plaintiffs are particularly interested in the cumulative effects of commercial windfarms of golden eagles, including 17 windfarms in Albany County.
Court decision in Center for Biological Diversity v. U. S. Dept. of the Interior (D. D.C.)
On November 1, the district court held that plaintiffs lacked standing to sue over more than 4000 applications for permit to drill (“APDs”) for oil and gas in New Mexico’s Permian Basin and Wyoming’s Powder River Basin. The court required plaintiffs to prove standing with regard to each agency action rather than “”draw a line around them,” and allege that they have individual members who have a geographic nexus with “the resulting ‘APD Area.’”” They failed to, “identify individual members who use the areas affected by the challenged individual APDs.” This article includes more background.
New lawsuit: Center for Biological Diversity v. U. S. Bureau of Land Management (D. Ariz.)
On November 2, the CBD along with the Maricopa Audubon Society sued the BLM and Fish and Wildlife Service for violating the Endangered Species Act by failing to protect habitat for the endangered southwestern willow flycatcher and western yellow-billed cuckoo from cattle grazing damage when it authorized seven grazing allotments along Arizona’s Gila River. The claims are based on field surveys identifying continuing damage, apparently related to unauthorized grazing, despite previous agreements to remedy the problem. (The press release has a link to the complaint.)
New lawsuit: Southern Utah Wilderness Alliance v. U. S. Dept. of the Interior (D. Utah)
On November 3, plaintiffs challenged four separate decisions made in 2018-2019 by the Bureau of Land Management to offer, sell and issue for development 145 oil and gas leases covering approximately 215,325 acres of public lands in Utah’s Uinta Basin without fully and adequately analyzing the environmental and public health impacts of those decisions. (The news release has a link to the complaint.)
OTHER
New lawsuit
BlueTriton Brands filed the lawsuit in October in Fresno County Superior Court, arguing in its complaint that the California State Water Resources Control Board overstepped its authority when it ordered the company to halt its “unauthorized diversions” of water from springs in the San Bernardino National Forest. BlueTriton and prior owners of the business have for years had a special-use permit allowing them to use the pipeline and other water infrastructure; however, the Forest Service recently told the company that reissuing the permit would require proof of water rights. The company’s argument centers on the different legal treatment of groundwater and surface water under California law.
Jon, to be clear, the article on the Interior press release says “Interior Secretary Deb Haaland announced the advancement of 15 new renewable energy projects in the western U.S. as the Biden administration seeks to tout its record on energy.” not all of those have reached the potential litigation phase yet, so we can’t be sure if they will be litigated or not.
Since they didn’t provide the details, I called it “some.” But here is one they specifically mentioned, which I think is important because it is the “first project to be completed under BLM’s Desert Renewable Energy Conservation Plan.” The DRECP was adopted seven years ago, but it’s not clear how long this project took, so maybe this project is an example of how to plan to do this right.
https://renewablesnow.com/news/intersect-power-turns-on-500-mw-solar-storage-site-in-california-840230/
It looks like they needed to do a plan amendment?! Gotta luv those programmatics.. or not. https://eplanning.blm.gov/public_projects/2001226/200478716/20036581/250042778/Oberon%20NOI_86%20FR%2014763.pdf
Looks like the EA only took a few years.. wonder why they had to put it in the Fed Reg?
So maybe this isn’t a great example, but here is what it looks like to me is going on. The sentence prior to what you quoted says, “The Project is within a development focus area, as identified through the Desert Renewable Energy Conservation Plan (DRECP) amendment to the CDCA Plan,” and your quote refers to it as “an area identified as suitable for renewable energy development.” It sounds like a not-unusual case of discovering that when area-wide plan standards and guidelines are applied to particular situation, they have an unintended effect. That is a legitimate reason for a project-specific amendment and consideration of the effects of the change as applied to that situation. (It looks like it’s an agency policy to provide Federal Register Notice of proposed plan amendments because I don’t see anything in FLPMA.)